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The Human Rights Act and ECHR as a threat to UK sovereignty

Euroscepticism, Social Benefits, and Fundamental Rights dialogue in Europe

Euroscepticisme, prestations sociales, et dialogue sur les droits fondamentaux en Europe
Victoria Hooton

Résumés

Cet article a pour objectif d’explorer la réticence des cours régionales européennes (la CEDH et la CJUE) à prendre en compte l’importance des droits humains lorsqu’elles examinent les politiques des États-membres en matière de protection sociale. L’article s’intéresse au droit européen encadrant la libre circulation des personnes et à la Convention européenne des droits de l’homme, et met en lumière les cas dans lesquels les cours régionales opèrent une « mise à distance » entre elles et la question de l’accès à la protection sociale dans les régimes juridiques des états. Ceci permet de montrer que le discours eurosceptique et le non-respect des droits humains fondamentaux pourraient être des facteurs étroitement liés dans le paysage juridique et politique actuel. Le discours se durcit et débouche sur des politiques, des modèles juridiques, et éventuellement des violations des droits humains qui peuvent ensuite ne pas être rectifiés par des acteurs juridiques qui ne sont pas neutres politiquement, car sensibles aux points de vue eurosceptiques exprimés au niveau national.

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Introduction

  • 1 This article was first drafted in 2021 and has since been updated, but it is possible that (...)

1This article considers the relationship between fundamental rights and human rights in the scheme of welfare access under two regional frameworks of rights: the law of the European Union (EU) relating to its Charter of Fundamental Rights and its free movement law, and the European Convention on Human Rights (ECHR).1 The aim of this research is to show how the political climate of Euroscepticism – both in the UK and Europe more broadly – might influence the parameters of fundamental rights with regards to nationally sensitive policy areas, such as the welfare state.

  • 2 And an approach to administering UK immigration and welfare law that has sought to exclude (...)
  • 3 See Speech by David Cameron (2013) and Letter from David Cameron to Donald Tusk (20 (...)
  • 4 Dimitrios Giannoulopoulos, “The Eurosceptic Right and (Our) Human Rights: the Threat to the (...)
  • 5 Zoë Jay, “A Tale of two Europes: How conflating the European Court of Human Rights with the (...)

2Part of what might be considered as “Euroscepticism” in the UK manifests itself in political rhetoric that treats any intervention by “foreign” legal systems and actors in national policy and decision-making as suspicious at best and constitutionally repugnant at worst. Two particular facets of the political debate are important for this article: the rhetoric relating to EU free movement law and “benefit tourism”, and that relating to the ECHR’s potential interference with executive action by national governments such as the deportation of migrants. The former sparked the attempt to renegotiate certain terms of EU law to crack down on benefit tourism,2 and arguably played a considerable role in the UK’s ultimate secession from the EU.3 The latter has led to a sustained threat to repeal the Human Rights Act 1998 and leave the ECHR for similar reasons of wanting to regain national sovereignty.4 Euroscepticism appears to have been part of the political consciousness regarding the UK’s relationship to both the EU and to the ECHR, with the often misguided assumption that the two legal frameworks are one and the same perhaps even increasing negative sentiments towards one or the other.5

3Yet this political climate is not unique to the UK. It was not the only EU Member State concerned with “benefit tourism”, and was actively joined in its endeavour to set limits on mobility and welfare access rights by Germany, the Netherlands, and Austria.6 It is also not the only contracting state7 of the ECHR to treat the European Court of Human Rights (ECtHR) with suspicion. In May 2025, the leaders of nine of the European countries who are contracting states to the Convention signed an open letter to the Court,8 to open a dialogue relating to the “proper” interpretation of the Convention. The letter was essentially a bid for more national control over the fate of migrant “criminals” – specifically, regarding their potential expulsion from the national territory. How exactly such a re-thinking of the application of ECHR rights to immigration cases would affect migrants at large is not mentioned, although it is not impossible to foresee a future where the same leaders bid for less scrutiny regarding their broader immigration policies.9

  • 10 Pablo Castillo-Ortiz, “Right-Wing Eurosceptic Parties and the Strategic Use of Law”, Journa (...)
  • 11 Harriet Ní Chinnéide & Eva Sevrin, “Restoring Balance: A Critical Response to the Open Lett (...)
  • 12 Idem; see also Dimitrios Giannoulopoulos, op.cit.

4Instances of Euroscepticism around migration and fundamental rights both within the UK and Europe more broadly are pushed by right-wing and populist narratives about the impact of migration at the national level. But these narratives are not just political and cannot simply be disregarded as such. They are based on important legal concepts10 that speak to the apportioning of constitutional power between national governments and international legal bodies.11 As such, Eurosceptic debates about European legal institutions have the potential to impact the legal significance of human rights regimes in the national territory, for example, if a Eurosceptic (and usually anti-migration, anti-human rights) executive either informally disengages with their obligation to observe rights, or actually formally alters the relationship between their nation state and the regional rights framework (such as the UK did with Brexit).12 Another potential way that European legal frameworks can lose significance for those who they are there to protect is if the legal actors implementing those frameworks choose to restrict themselves in a bid to avoid a Eurosceptic backlash. If courts such as the Court of Justice of the European Union (CJEU) or the ECtHR limit their interventions in national decision making in order to avoid negative attention from national authorities, this has an impact on the scope of rights both in individual cases before the courts and, more broadly, in the general scheme and application of human rights frameworks.

  • 13 The term “regional frameworks” here refers to legal instruments that exist beyond the (...)

5What complicates the matter of the political rhetoric relating to the “interference” by “foreign” judges and institutions, is that some level of critical attention to the role played by international legal actors is warranted. Those involved in the implementation and application of regional rights regimes13 (most relevant for this article, the CJEU and ECtHR interpreting and respectively upholding EU law and the law relating to the ECHR) must strike a balance between enforcement of the rights contained in their legal frameworks and recognition of legitimate execution of state power by national authorities. However, this balance may not always be perfectly struck, and there may be a temptation to err on the side of allowing states to exercise their sovereignty, when to do otherwise would prove politically unpopular. In an area as politically sensitive as the provision of welfare, one may expect regional courts to tread cautiously. At what point, though, does legitimate caution become illegitimate self-limitation in a bid to politically appease national governments in states with a tendency towards Euroscepticism? This article illustrates where regional legal instruments (namely, EU free movement and fundamental rights law and the ECHR) may have been interpreted and applied in a way that is mindful of the political (rather than legal) limits of the legitimacy of the two relevant regional courts, namely the CJEU in Luxembourg and the ECtHR in Strasbourg.

6This research is undertaken by looking at the interpretative choices made by the Courts, and highlighting where more politically contentious routes could (or previously have) been taken, but have been avoided. In such instances, it is suggested that Euroscepticism, and the potential political backlash that foreign legal institutions can face, may have actually been a guiding force in the development of the law relating to welfare access and fundamental and human rights. The result being that the welfare dimension of fundamental rights law is either stunted or under-explored. Given the focus on the two regional legal frameworks and their interpretation by their respective courts, less focus is given in this article to the UK and its national approach to welfare benefits and the recognition of human rights through the application of the Human Rights Act 1998. However, the UK is often a useful case study in the following sections and it will be notable how many national UK cases and cases from the EU or ECHR level concerning UK law are relevant when discussing the matter of fundamental rights and welfare benefits access.

7First, this article considers EU law, and more specifically how Euroscepticism has influenced the relationship between free movement, equal treatment and welfare access. Second, it explores how the acceptance of automatic exclusions of EU citizens who are not economically active from access to welfare is considered from the human rights perspective. Third, it discusses a less obvious impact on human rights norms, in the unwillingness of the Court of Justice of the European Union (CJEU) to recognise the importance of the Charter of Fundamental Rights) in cases relating to welfare access and free movement. Fourthly, the ECHR framework is discussed, and the overlapping themes of the Strasbourg and Luxembourg courts are introduced. The preference of the European Court of Human Rights (ECtHR) for non-engagement of human rights norms in cases relating to state financial assistance is demonstrated in a discussion of the limited scope for certain rights to be engaged in these scenarios. Then, in the preference for dealing with welfare access cases as an issue of discrimination. Finally, this article considers the broad deference awarded by the ECtHR to contracting states of the ECHR in this area.

Euroscepticism in the EU dialogue around free movement and welfare access

  • 14 Michael Dougan, “National Welfare Systems, Residency Requirements and EU Law: Some Brief Co (...)
  • 15 Neville Harris, “Demagnetisation of Social Security and Health Care for Migrants to the UK” (...)

8The political phenomenon of Euroscepticism, combined with growing concerns around migration and welfare expenditure, have played a role in the development of EU free movement law, particularly in the area of EU citizenship, residence, and welfare access. As Dougan notes, the free movement of EU nationals has been considered a threat to the sustainability of public funds in certain member states.14 Welfare policy has therefore been shaped to exclude migrants from social benefits, including EU citizens who have exercised their free movement rights.15 National developments of restrictive social benefits policies for migrants have translated into a restrictive approach to free movement and social benefits provision at the European Union level. The CJEU has slowly shifted away from scrutinising such policies in light of fundamental rights and freedoms assured by EU law (such as free movement of persons, or the prohibition of nationality discrimination), towards a more permissive approach that allows member states to treat EU citizens differently from their own nationals when it comes to welfare benefits access.

  • 16 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union cit (...)
  • 17 For more details on this point, see Victoria Hooton, Free Movement and Welfare Acce (...)

9It is impossible to fit, into the scope of a single article, a comprehensive overview of the CJEU’s shift towards permitting essentially automatic exclusions of economically inactive EU citizens16 from welfare access under the EU free movement framework.17 A summary must therefore suffice.

  • 18 Case C-184/99 Grzelczyck (2001) ECLI:EU:C:2001:458 [31].
  • 19 For this category of individuals, the conditions for residency (and thus welfare access) (...)
  • 20 For instance, particular residence conditions are in place for students, jobseekers, and al (...)

10Previously, the CJEU had held EU citizenship to be a “fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy […] the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for”.18 It is the “exceptions” provided for which became the subject of intense litigation for the foreseeable future, particularly regarding residents of a member state who had not yet acquired permanent residence – which requires 5 years of lawful residence – nor the stronger equal treatment rights attached to that status.19 Resident EU citizens without an economic activity20 or permanent residence are subject to limitations and conditions on their right to reside in a Member State, which has an impact on their ability to claim equal treatment to welfare benefits. Over time, this impact has grown, as member states have sought out ways to avoid the obligation to offer equal treatment to economically inactive EU citizens with regards to social benefits, and the CJEU has become more permissive of this.

  • 21 See Grzelczyk (n4); Case C-138/02 Collins (2004) ECLI:EU:C:2004:172; Case C-258-04 (...)
  • 22 CRD, Article 7(1)(b).
  • 23 Grzelckzyk [44].
  • 24 Charlotte O’Brien, “Real links, abstract rights and false alarms: the relationship between (...)
  • 25 Michael Blauberger et al., “ECJ Judges read the morning papers. Explaining the turnaround o (...)

11With the original conceptualisation of citizenship as a fundamental status, came the right to equal treatment even regarding access to social welfare benefits.21 While there were existing provisions that EU citizens exercising their free movement rights should not become an unreasonable burden on the social assistance system of the member state in which they reside,22 the CJEU took a broad approach to extending equal treatment for EU citizens needing to claim welfare benefits in their member state of residence. Thus, EU law accepted “a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States”, even when secondary legislation hinted that a generally restrictive approach to access to welfare benefits would be taken.23 It was never the case that EU law allowed instant, carte blanche access to welfare benefits for EU citizens who had utilised their free movement rights to live in another member state. Equal treatment to benefits was usually established by reference to the solidaristic ties between an EU citizen and the host member state, i.e. by how long they had resided in the member state, and whether they had other integrative links such as family or education.24 Nevertheless, any “strict” enforcement of conditions that would otherwise exclude a citizen from access to social benefits was subject to a rigorous proportionality review in which the Court could find a member state had not sufficiently taken the personal circumstances of a citizen into account, and thus had unfairly excluded them from welfare access.25

  • 26 Case C-333/13 Dano (2014) ECLI:EU:C:2014:2358.
  • 27 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union cit (...)

12The “reactionary” phase of the CJEU saw a shift away from this model of scrutiny, towards a model of permitting member states to automatically exclude EU citizens who were not economically active from their welfare systems, usually on the basis of the same conditions of secondary legislation that the Court had previously tempered. The 2014 Dano26 judgment in particular marked a turning point, as it altered the methodology of equal treatment review in this area of law seemingly irreversibly. Whereas previously the equal treatment of EU citizens was taken as the starting position, with the potential for national authorities to rely on residence conditions to reduce or remove that right, after Dano the residence conditions would be the gateway to the right to equal treatment. Requiring EU citizens to comply with residence conditions, i.e. to have sufficient resources not to burden the social assistance system, essentially bars them from access to the social assistance system in an automatic way: EU citizens must be lawfully resident to claim equal treatment to welfare benefits, but one of the requirements of that residence is essentially that they have sufficient resources to not need any welfare benefits. This adjustment in approach to assessing welfare exclusion for EU citizens not only reduced the capacity for EU law to offer equal treatment vis-à-vis welfare access, but also removed the previously rigorous proportionality review from the case law, leaving welfare exclusion largely without legal scrutiny.27

  • 28 Case C-67/14 Alimanovic (2015) ECLI:EU:C:2015:597; Case C-299/16 García-Nieto (2016) ECLI:E (...)
  • 29 Case C-308/14 Commission v UK (2016) ECLI:EU:C:2016:436.
  • 30 Charlotte O’Brien, “The great EU citizenship illusion exposed: equal treatment rights evapo (...)
  • 31 Michael Blauberger et al., “ECJ Judges read the morning papers. Explaining the turnaround o (...)
  • 32 Idem.
  • 33 Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union citizensh (...)
  • 34 Michael Dougan, “National Welfare Systems, Residency Requirements and EU Law: Some Brief (...)

13By 2016, the Court had extended this to most categories of economically inactive EU citizens claiming most types of welfare benefits. Jobseekers who were newly arrived in a member state and those who had already been working for some time before becoming unemployed could be excluded from access to jobseeking cash benefits on the basis of the conditions and limits set out in EU secondary legislation, without rigorous review from the CJEU.28 Economically inactive citizens claiming social security benefits on the basis of the EU social security coordination Regulation in the UK could, according to the CJEU in Commission v UK, be required to establish residence according to the (much stricter) tenets of the Citizens’ Rights Directive before doing so.29 The U-turn on EU citizenship rights was considered to be politically driven by several authors. The timing of some of the later judgments considering residency and welfare access were telling, notably Commission v UK that occurred just over a week before the UK’s Brexit referendum. In such circumstances, notes O’Brien, “the Court is a political actor”.30 Blauberger et al.31 note how the shift in methodology from the Court could be attributed to the public perception of the pressure placed on the welfare state by intra-EU migration, and is a result of CJEU judges “read[ing] the morning papers”.32 They note that this may explain why, instead of engaging with the actual legal framework that EU law provides against free movement “abuse”, the Court hints at the potential for abuse, and opens the door for member states to “protect” themselves from this with automatic exclusion of EU citizens in their territory from social benefits.33 Generally, the more recent case law from the CJEU is seen as a reaction to a political discontent over the potential for “benefit tourism” in the European Union.34

  • 35 For a detailed presentation of how the two systems compare on issues of equal treatment vis (...)

14The suggestion that the CJEU has been subject to politicisation in a Eurosceptic climate (both in the UK and Europe more broadly) is due to the Court’s dismantling of established principles and legal concepts that had been built over the course of at least two decades, in order to reach a more favourable outcome for the member state in its later case law on free movement and welfare access. From this, the strength of political rhetoric around welfare access, and particularly the potential influence of Euroscepticism, may come into view. The following section in this article attempts to summarise how these developments affect fundamental human rights. Two human rights systems that might be affected by this shift in EU law are considered: the ECHR and the EU Charter of Fundamental Rights. Although the two systems are both legally and politically distinct, interpretations and applications of EU law may impact the realisation of certain ECHR rights, especially regarding immigration, social benefits access, and equal treatment.35

Evasion of ECHR considerations in welfare access case law

  • 36 For citizens who are not workers or self-employed, family members of a worker/self-employed (...)
  • 37 Case C-456/02 Trojani (2004) ECR I-07573.

15The right to a private and family life under the ECHR could be affected by the interpretation of EU law on free movement and welfare access. Decisions on access to social benefits both affect, and are determined by, the lawful residence of the citizen involved. One of the conditions for residence36 for economically inactive individuals is to have sufficient resources not to burden the social assistance system. Thus, attempting to access the social assistance system and claim welfare benefits can undermine a citizen’s ability to demonstrate their right to reside in the member state, as it suggests they do not have sufficient resources to fulfil the residence conditions.37 An individual’s private and family life and the stability of their home is therefore affected by decisions to seek access to welfare, as they risk highlighting a potential lack of legal residence that might lead to a request for them to leave a member state territory. However, the more recent CJEU case law on welfare access for EU citizens resident in another member state evades any discussion of how the right to a private and family life of the applicants for social benefits may be affected by the finding that they are barred from social benefits access due to a lack of residence. Despite the confusing linguistics, it is often the case that a finding that an EU citizen cannot establish a right to reside does not lead to an automatic expulsion from the territory of the member state, and only serves to allow the member state to exclude them from welfare benefits access. Thus, member states can avoid the potential fundamental and human rights litigation of decisions relating to residence. That does not mean, though, that the actual enjoyment of those rights is not impacted. As will be demonstrated below, EU citizens refused welfare access on the basis that they have failed to establish lawful residence may still be required to give up their lives in their host member state due to the financial pressures of the welfare refusal.

  • 38 Directive 2004/38/EC on the right of citizens of the Union and their family members to move (...)

16The 2004 Citizens Rights Directive (CRD)38 contains the residence conditions for economically inactive EU citizens who have exercised their free movement to another member state. Recital 16 of the CRD preamble handles the issue of the link between residence and access to social benefits, particularly with regard to the potential for expulsion from the territory of the member state. Whilst a citizen’s right to reside may be thrown into question if they attempt to access social benefits, the CRD can be (and is) interpreted as creating a level of divorce between the control of welfare access through residence conditions, and the matter of expulsion from the member state territory. The preamble states:

  • 39 CRD, Recital 16.

As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.39

  • 40 Mirga v Secretary of State for Work and Pensions (2016) UKSC 1 [46]; AMS v Secretar (...)
  • 41 It should be noted that the citizen may not be guaranteed to have access to necessary welfa (...)
  • 42 Anita Handlmaier & Michael Blauberger, “Enter at your own risk: free movement of EU citizen (...)
  • 43 Ibid., 1214.
  • 44 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of U (...)

17This appears to separate the acts of an order of expulsion from a denial of the right to reside.40 The member states can indicate that a citizen has no right to reside, and therefore that they have no right to social welfare, without specifically requiring them to leave their territory. As discussed in more detail below, this is an approach that has been taken by the UK courts. This form of welfare “quarantining” forces citizens who have attempted to claim welfare and have been rejected on the basis of their lack of lack residence, to choose between poverty in their current member state, or returning to their “home” member state and leaving their settled lives behind.41 Alongside the UK, similar instances of such “quarantining” have also been seen in Germany and Austria. Handlmaier and Blauberger42 have noted that there is now an “underclass”43 of EU citizens in those jurisdictions, whose presence is tolerated but denied any support, so that the general landscape invokes an “entry at own risk” principle for EU citizens utilising free movement when they are not in work or they do not own sufficient resources to maintain themselves. Nic Shuibhne refers to this as “the antithesis of responsibility”44 by EU law, and suggests that allowing (or mandating) expulsion of EU citizens who are “unreasonable burdens” would be more palatable than leaving financially vulnerable individuals unchecked, in a country where their presence is tolerated but not supported.

  • 45 Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (2011) UKSC 11, at (...)

18In a UK Supreme Court (UKSC) case, Patmalniece,45 the Advice on Individual Rights in Europe Centre (AIRE) intervened to suggest the same: that EU citizens, who have been found to be without a right of residence, and would be a “burden” on the social assistance system, and therefore denied benefits on that basis, should be excluded from the territory of the UK. They put forward the argument that this would be better than “starving out” vulnerable citizens and putting them in a financially precarious situation that forces them to return home voluntarily. This makes sense, given that a flight “home” may constitute a cost that the citizen simply cannot afford, or could push them further into poverty. However, the UKSC found no suggestion in EU law that the right to reside could not be used to simply curtail access to social assistance, without the use of deportation/exclusion orders. The Court therefore refused to take a line of interpretation that would require authorities to deport citizens who do not meet the conditions of residence/welfare access.

19Exclusion from the territory of a member state on the basis that a citizen has not established the right to reside, or has become a burden on the social assistance system, is likely permitted under EU law in the CRD, but not required by it. Recital 16 does not indicate that member states may never exclude a citizen from their territory when they have become an unreasonable burden on their public finances. Member states may thus adopt a responsible policy. Unfortunately, the irresponsible policy of using residence to “quarantine” EU citizens from the welfare state is more likely to be used. If a member state embarked on the more responsible endeavour of deporting EU citizens who they find to be an unreasonable burden, they would be potentially violating the citizen’s fundamental rights. Unlike welfare refusal, deportation has a definitive impact on fundamental freedoms and human rights. The EU right to free movement of persons, and the ECHR right to respect for the private and family life, can be contravened by such action. Whereas excluding EU citizens from equal treatment regarding welfare access is (relatively) legally sound, deporting them as a result of their attempt to access welfare would not be, and would draw the attention of both European legal frameworks.

  • 46 See CRD, Article 28; and i.e. Case C-30/77 R v Bouchereau (1977) EU:C:1977:172; Case C-36/75 (...)
  • 47 CRD, Article 28.
  • 48 R (Gureckis) v Secretary of State for the Home Department and others (2017) EWHC 3298 (Admi (...)
  • 49 Ibid., para 89.
  • 50 Ibid., para 93.

20Firstly, deportation would be contrary to the fundamental EU right to free movement. Exclusion from the territory of a member state is the most serious interference with the right to free movement possible, and EU law has consistently imposed severe limits on the member states’ ability to do this.46 EU law requires a public policy or public security imperative to exclude an EU citizen from the territory of a member state.47 In the Gureckis case in the UK,48 the High Court considered a Home Office policy to deport rough-sleeping EU citizens to be a breach of the fundamental EU law right to free movement. Economically inactive citizens therefore had the right to reside in the UK, even when rough sleeping, “provided that they [did] not seek social assistance from the host Member State”.49 Rough sleepers were not considered a burden on UK resources, as they did not attempt to claim social assistance, which would be the only burden that would matter,50 any burden on social resources other than welfare benefits would not count against the citizen. The subtext of the judgment was that there should be no concern about what EU citizens do, or what may happen to them as a result of rough sleeping, so long as they do not, or cannot, claim social assistance. In addition, the right to free movement trumps social concerns over migration and poverty. The judgment may indicate that “burdens” on the social assistance system can be deported, but the case law regarding economically inactive citizens and access to welfare demonstrates that this is not undertaken, and that EU free movement law would likely be infringed if it were.

  • 51 For example, Moustaquim v Belgium (1991) 13 E.H.R.R. 802; Beldjoudi v France (1992) (...)
  • 52 See Üner v Netherlands (2006) application no. 46410/99.

21Moreover, as the loss of (or inability to establish) the right to reside currently does not lead to expulsion from a member state territory, there is no question of the right to private life or family life contained in the ECHR being infringed by the refusal of benefits/residence. This would not be the case if citizens were to be excluded from a member state territory when they could not establish the right to reside whilst trying to claim welfare. The ECHR does not guarantee that an individual can stay in the territory of a contracting state, but there are instances where an expulsion order would interfere with the right to a private or family life under the convention.51 Unsurprisingly, most cases concerning deportation under Article 8 of the Convention concern criminals being deported to their country of origin. The European Court of Human Rights (ECtHR) sets some boundaries on the factors that the national authorities should take into consideration, and requires a careful balancing to be undertaken, weighing the public interest in the deportation against the personal circumstances of the individual. The deporting authority should consider the individuals family and home situation, their links with the territory of the host state, and their length of residence in comparison to the seriousness of their crime.52 In cases relating to “unreasonable burden” citizens, there is no crime, and it is unlikely that there would be a strong enough public interest for deportation. This is particularly the case for citizens with some degree of settlement/integration. Thus, the current interpretation of residence conditions and welfare access, which does not require member states to ask EU citizens to leave their territories when they demonstrate their lack of residence by applying for welfare, prevents the policy from constituting a human rights violation. That does not mean that it does not affect the availability for the individual to stay in the member state, thus having some degree of impact on their family or private home life. Rather, it means the decision-making is deferred to (or forced upon) the citizen themselves, who will have to decide to return to their country of origin to gain access to vital financial support. The result would still be that the citizen loses their settled private and family life in the host member state. As a result, the decisions actually made by member state authorities (the welfare refusal, rather than deportation) are less justiciable from a human rights perspective.

  • 53 Mirga, above (n38) [46].

22In the UKSC case Mirga, which dealt with the issue of the right to reside and benefits access in the UK, counsel for the applicant attempted to argue that denying the right to reside to the individual would be an interference with Art 8 ECHR, as the claimant would have to leave her life in the UK. Lord Neuberger explicitly disagreed with this, because denying residency does not have the effect of removing a person from the territory of the member state,53 but is rather only a tool with which the national authorities can legitimately deny them welfare. However, he noted that the effect on the individual might be that they have to return to their home member state to seek social assistance, stating:

  • 54 Mirga [46].

The fact that Ms Mirga may have to cease living in the UK to seek assistance in Poland does not appear to me to assist her argument. Although the refusal of social assistance may cause her to leave the UK, there would be no question of her being expelled from this country. I find it hard to read the 2004 Directive as treating refusal of social assistance as constituting a species of constructive expulsion even if it results in the person concerned leaving the host member state. As I see it, the Directive distinguishes between the right of residence and the act of expulsion.54

23Inherent in this assessment is the acknowledgement that to choose to stay would mean financial vulnerability for Ms Mirga, and that it is very likely that she would have to leave her settled life in the UK behind and voluntarily move back to Poland. Also, it recognises that if such a course of action were explicitly mandated, it would be a human rights violation, as an expulsion would “assist her argument” vis-à-vis the human rights element.

24The examples of the relationship between welfare exclusion under EU law and free movement show how an arguably “irresponsible” line of interpretation has been established, which has created a problematic relationship between the law on residence and welfare access. The CJEU’s re-interpretation of residence criteria as a gateway to equal treatment for welfare access, rather than a limitation on that equal treatment that must be scrutinised, was likely the result of the Court’s cognisance of growing Eurosceptic sentiments in member states. This politically-driven re-writing of established legal principles not only condones nation-centric, Eurosceptic national policies excluding EU migrants from welfare access, it allows member states to “starve out” affected EU citizens, using their lack of residence rights to justify a denial of welfare support without actually deporting them. This circumvents the member states’ obligations to respect fundamental rights like the right to free movement, or respect for the private and family life of the citizen, and avoids any relevant fundamental rights claims under EU and ECHR law in the process. Exclusionary welfare policies of course still tread into the material area of these fundamental rights, as EU citizens are forced into financial precarity that leaves them with no choice but to leave their settled lives in their host member state. It is therefore clear that decisions on residence and welfare access can and do have an impact on the ability for an individual to continue to exercise their right to free movement, or to continue to enjoy their family life or private life in a member state. However, the way EU law has offered deference to national interests in this area has left relevant fundamental rights without any bite in instances of welfare refusals made on the basis of EU free movement law.

Evasion of the EU Charter of Fundamental Rights in welfare access cases

  • 55 Charter of Fundamental Rights of the European Union (2012) OJ C 326/391 (“EUCFR”).
  • 56 Jaan Paju, “The Charter and Social Security Rights: Time to Stand and Deliver?”, European J (...)
  • 57 EUCFR, Article 51(2).
  • 58 Ibid.
  • 59 Frans Pennings, “Does the EU Charter of Fundamental Rights have Added Value for Social Secu (...)

25Alongside avoiding the free movement and ECHR rights that can be impacted by decisions relating to welfare access in the free movement context, current EU case law also allows member states to refuse welfare to EU citizens in a way that avoids encroaching on important rights contained in the EU’s Charter of Fundamental Rights (CFR),55 which may otherwise have found application in free movement/welfare access cases. In Article 34, the Charter acknowledges the Union’s respect for entitlement to social security and states [in Art.34(2)] that anybody “residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices”. However, as Paju56 notes, Article 34 gives no actual right to social security, because of the nature of the Charter and the limits of its legal application. Since the Charter is not intended to extend the scope of EU competence,57 its explicit recognition of respect for social security entitlement does not create a general Union competence to interfere into matters of welfare policy. The limits of Union intervention into welfare access decisions remain, therefore, largely unchanged by the tenets of the Charter. Moreover, the Charter is only applicable in scenarios where EU law itself is being interpreted or applied,58 so it has limited scope to provide a fundamental rights element to cases concerning welfare access, especially when authorities are relying exclusively on national law to make a welfare refusal. Pennings also notes that it is only in certain circumstances that the Charter has “added value” for citizens attempting to gain access to welfare benefits, but that this is to be expected.59 The limited application of the Charter, and its inability to create new fundamental rights to welfare reflect the political reality that the competences of the Union are limited, and that social welfare and redistributive issues are matters of a sensitive nature that must remain mainly within the competences of the national member states.

  • 60 Jaan Paju, “The Charter and Social Security Rights: Time to Stand and Deliver?”, op.cit., 3 (...)
  • 61 Dano (n24) [85].
  • 62 Ibid. [90]-[92].
  • 63 Frans Pennings, “Does the EU Charter of Fundamental Rights have Added Value for Social Secu (...)

26However, the Charter still has some scope to raise obligations on member states making decisions about welfare access, especially when they are relying on the conditions of residence enshrined in EU law to do so. There are instances where the Court’s consideration (or more accurately, avoidance) of the application of the Charter might have been guided more by the political pressure of Euroscepticism than by the nature of the Charter itself. The Charter contains what Paju refers to as “flanking rights”, rights which are not specifically related to social welfare but could be engaged by decisions taken in relation to social welfare.60 For instance, the CJEU has already considered the scope of the right to human dignity (Article 1 CFR), the right to equality before the law (Article 20 CFR), and the right to a family life (Article 7 CFR) in welfare access cases. In the seminal Dano judgment mentioned above, the German authorities asked the Court whether the Charter (Articles 1 and 20) would allow them to limit the provision of subsistence benefits for economically inactive EU citizens to the cost of their return to their home state.61 The CJEU denied having any jurisdiction to answer this question, as member states are not “implementing EU law” when they are laying down the conditions for cash benefits, the Charter is not engaged.62 Pennings highlights that the Court could have (as it often does) reframed the question of the German court,63 and discussed the potential Charter consequences of excluding economically inactive citizens from access to welfare. However, it did not, and preferred to avoid the engagement of the Charter, possibly to smooth the way for the strong limits on residence/welfare access to prevail. This motive is difficult to refute, when the Court based its non-engagement with the Charter on the fact that Germany was not “implementing EU law”, despite the fact that the authorities were explicitly relying on their implementation of EU law rules laying down the conditions of residence to reject Ms Dano’s application for social welfare. The reaction of the CJEU to potential political backlash in this instance has a direct impact on the parameters of the Charter’s applicability. The German national authorities themselves could see a degree of relation between the exclusion from social welfare (or limiting of access to welfare) and certain Charter rights, but the CJEU chose not to recognise this link.

  • 64 Charlotte O’Brien, “The great EU citizenship illusion exposed: equal treatment rights (...)

27More recently, in CG, the Court further muddied the waters regarding the relationship between the Charter and welfare access in EU law. The case also concerned an individual, like Ms Dano, who applied for minimum subsistence benefits. However, unlike the situation in Dano, the individual was resident based on UK national law as it was during the UK’s transition period before the end of its membership of the Union and the UK had created a residence framework for EU citizens already in the UK. Contrary to Dano, the CJEU found that the UK was implementing EU law on free movement and citizenship by offering residence to EU nationals already in the UK at the time of transition period. Thus, the Charter was engaged and UK authorities were apparently required to make an assessment as to whether the denial of benefits would be compliant with the Charter Rights, more specifically, the right to human dignity (Article 1), the right to respect for private and family life (Article 7) and the rights of the child (Article 24). As O’Brien notes, this creates a confusing (and in all events arbitrary) approach to when the Charter may be invoked, which is not easy for claimants to apply practically. From the judgment, it is not clear why the Charter should only be applied where there is a separate form of residence in the national legal system, rather than when residence is established according to EU law.64 More importantly, the Court seemed to limit the application of the Charter to the “situation” of the claimant, which was relatively specific: a person with no resources of her own, with young children, fleeing a domestic violence situation.

28The non-engagement of the Charter in Dano, and the very limited and unspecified engagement of it in CG, demonstrate two issues that arise from the Eurosceptic political landscape. Firstly, the evasion of the Charter where Eurosceptic policies are concerned highlights that the regional Court (the CJEU) creates a legal buffer between itself and awkward questions regarding the potential fundamental rights effect of national policies on welfare access. Secondly, where the Court does engage in potential scrutiny along fundamental rights lines, it limits the impact of this and refuses to set down clear guidelines for the state to be compatible with those fundamental rights. Thus, the parameters of fundamental rights that are inherently linked to welfare access, may have been shaped more by the political awareness of the Court and the current Eurosceptic climate, than by carefully constructed legal norms and practices.

29A similar pattern can be seen in the discourse of the European Court of Human Rights (ECtHR) in the application of ECHR rights, where welfare access is concerned. Naturally, the considerations are different between the two European systems. In EU law, there is some level of political and legal influence over the provision of social security, because of the agreements made to support free movement law. This both legitimises and limits the potential for EU interference in social welfare affairs to free movement scenarios. For the ECtHR, the potential reach of interference is broader and less legitimate. The ECHR has no legitimacy or political commitment regarding the provision of social welfare, so all decisions will come down to whether the denial or reduction of benefits is an infringement of human rights. Since this could apply to any resident in any contracting state if broad recognition of a human rights dimension of welfare access decisions were reached, it is no surprise that the threshold for successful challenges around human rights/ welfare access is naturally high in ECHR law. Despite this, the setting and interpretation of this threshold by the Strasbourg court indicates a level of non-engagement that is perhaps led more by political instinct than it is by concerns over legitimacy.

Euroscepticism in the ECHR context: legal buffering against scrutiny in welfare access cases

30The impacts of a generally Eurosceptic climate on the fundamental rights dimension of welfare access do not stop with the interpretation and application of EU law. The CJEU is not the only regional Court in Europe, and is therefore not the only legal institution potentially swayed by a will to avoid political backlash when it hands down judgments on welfare access and fundamental rights. The European Convention on Human Rights and its Court in Strasbourg (the ECtHR) have received their own wealth of negative attention from Eurosceptics. The Convention, and the jurisprudence established under it, also touch upon matters of welfare access and are therefore worth considering in this article. The themes that can be gleaned from the ECtHR’s interaction with welfare policy reflect the CJEU’s current approach. Firstly, because the Court attempts to make non-engagement with issues of welfare policy the standard, demonstrating a willingness to avoid the political sensitivity of reviewing national redistributive choices. Secondly, the challenges to welfare policy are usually dealt with through the auspices of discrimination. In doing so, the refusal of benefits that is potentially non-compliant with the Convention is relatively easy to fix (by clearer differentiation between groups or decreasing entitlement) or justify (by reference to material differences in situation of claimants). This leads on to the final similarity, which is that the ECtHR also has a theme of awarding deference to the state concerned, regarding their redistributive choices.

Non-engagement as standard

  • 65 Absolute rights are those which cannot be qualified (i.e. curtailed) by the sta (...)
  • 66 The suggestion that Article 3 had been infringed in O’Rourke, by an eviction leading to r (...)
  • 67 V v UK (1999) Application no. 24888/94.
  • 68 Price v the United Kingdom Application no. 33394/96; Valašinas v Lithuania (200 (...)
  • 69 Budina v Russia (2009) Application no. 45603/05.

31One way that the ECtHR creates non-engagement as the standard practice in applying the ECHR to scenarios concerning access to welfare, is the limited scope for absolute rights to apply in these cases.65 For instance, the Court has imposed a very high threshold for the engagement of Article 3 ECHR in welfare access scenarios, the provision against inhuman and degrading treatment.66 It should be noted that Article 3, as an absolute right that cannot be derogated from by the state, has a relatively high threshold for engagement in general. The “treatment” considered under the Article has to cause “actual bodily injury or intense physical or mental suffering”.67 This may be treatment that could be considered to be “showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance”.68 The Court has accepted that it “cannot exclude that State responsibility could arise [under Article 3] for “treatment” where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity”.69

  • 70 Anufrijeva v Southwark LBC (2004) 2 WLR. 603.
  • 71 Ibid. [35].

32There is an inherent link between the state financial support and dignity. Welfare safety nets can be the barrier between individuals and standards of living that fall short of achieving human dignity. In a UK case, Anufrijeva,70 the Court found that “There is a stage at which the dictates of humanity require the State to intervene to prevent any person within its territory suffering dire consequences as a result of deprivation of sustenance. If support is necessary to prevent a person in this country reaching the point of Article 3 degradation, then that support should be provided”.71

  • 72 Pančenko v Latvia (1999) Application no. 40772/98.
  • 73 Larioshina v Russia (2002) Application no. 56869/00.
  • 74 O'Rourke v UK (2001) Application No. 39022/97 (unreported).

33The level at which the ECtHR is willing to find that an individual is subject to deprivation enough to engage Article 3 gives some insight into how disengaged the Court may be when it comes to scrutinising welfare policy. In the UK case law only the most vulnerable members of society would face hardship enough to reach the point of “Article 3 degradation”. This type of threshold is easy for a judiciary (either national or regional) to defend, as given the extremity of circumstances considered (i.e. asylum seeking and homelessness in Anufrijeva, or a woman fleeing domestic violence and wholly dependent upon state support in CG), it may be difficult to find any dissent to the idea of awarding support to those individuals. It is not clear whether the ECtHR expects the same. In Pančenko,72 the applicant complained that protracted administrative proceedings regarding her residence status in Latvia created a precarious living position that left her in debt and without access to free medical assistance; the Court found this had not reached the level of severity to engage Article 3. In Larioshina,73 the applicant complained that her pension amount allowed her to maintain her home and buy food, but nothing more. The Court found this also did not constitute a standard of living that could engage Article 3, especially since the applicant was entitled to free medical assistance and had only not used it since the administrative burden to do so was very high. In O’Rourke being subject to rough sleeping that worsened existing medical conditions did not amount to the level of severity required for Article 3 engagement.74 These are (apparently) relatively mild cases of financial precarity and suffering, which do not really demonstrate where the finite line for engagement of Article 3 may be for the ECtHR. The Court has specifically noted that Article 3 will be engaged when someone is wholly reliant on state support and in a situation of serious deprivation, and is met with “official indifference” to this. The Court may also be envisioning Article 3 to only be engaged for the most vulnerable members of society.

  • 75 Philip Alston, Statement on Visit to the United Kingdom, United Nations Special (...)
  • 76 Idem.

34One may chalk this threshold up to the general high standards for engagement of Article 3, which is perfectly legitimate. However, one may also argue that swathes of individuals who interact with the welfare state find themselves at a level of deprivation capable of engaging Article 3 long before they are considered part of the most vulnerable members of society. Individuals who are not asylum seekers, not homeless, nor fleeing domestic violence, or not even “wholly reliant” on the state may find themselves at a level of poverty inspiring despair and extreme mental anguish. For individuals living under austerity in the UK, there is evidence of the level of anguish in their lived experience. In 2018, the UN Special Rapporteur on poverty visited the UK and compiled evidence of the human rights crisis emerging from austerity politics and cuts to welfare and public services. Despite being told that there was no extreme poverty in the UK, the Rapporteur found many instances of individuals choosing between heating their homes and eating, or even between paying rent and feeding their children.75 The Rapporteur also noted the increase in mental health impact of austerity, leading to front line staff in public services and other organisation requiring suicide prevention training.76 The long-term impact of living below the poverty line, but not necessarily in an “extreme” situation, can be perhaps more damaging than national authorities or regional courts would care to recognise. When considering these factors, there appears to be a gap between the factual circumstances that should lead to an engagement of Article 3, and the threshold at which it is legally accepted that Article 3 is engaged. This difference can be explained by political factors of legitimacy, or economic reality for states who cannot afford large welfare systems. There is a fine line between legitimate deference to the contracting state and disengagement to avoid potential political turmoil. It is not entirely clear on which side of this fine line the ECtHR finds itself, but the general lack of discussion around Article 3 in welfare access cases may demonstrate an unwillingness of the Court to set clear normative boundaries, which might be inspired by a will to avoid Eurosceptic backlash against the Court in Strasbourg from national authorities or the general public.

  • 77 Okpisz v Germany (2006) 42 E.H.R.R. 32.
  • 78 Weller v Hungary (2009) ECHR 530; Petrovic v Austria (2001) 33 E.H.R.R. 307.
  • 79 O'Rourke v UK (2001 Application No. 39022/97 (unreported).
  • 80 Petrovic v Austria (2001) 33 E.H.R.R. 14.
  • 81 Article 8 was not even considered, once it was established that Article 1 of the First Pr (...)

35Article 3 is not the only substantive right where the Court has limited the scope for engagement in welfare access cases. The Court has only recognised that the right to a private and family life is engaged in specific instances of refusal or reduction of benefits. Only adjustments or denial of benefits with a particular link to the home life of an individual will be considered under the scope of Article 8. The rules around access to child benefits,77 maternity benefits,78 and housing assistance79 have all been accepted as potentially affecting an individual’s right to their family or private life. It is not difficult to see how provision (or non-provision) of other benefits could affect Article 8 rights, particularly the right to a family life. Despite this, there is no widespread application of the Article, and no overarching positive obligation for the state to ensure a family home can be kept, or kept up to a particular standard.80 More often than under Article 8, engagement of the ECHR in welfare access cases is considered under Article 1 of the First Protocol to the ECHR.81 The Article states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

  • 82 Gaygusuz v Austria (1997) 23 E.H.R.R. 364 [46].
  • 83 STEC and Others v UK (2005) (admissibility decision) Application Nos. 65731/01 (...)
  • 84 Marckx v Belgium (1979) 2 E.H.R.R. 330.
  • 85 Müller v Austria (1975) 3 DR 25.

36Recognition of welfare benefits as a “possession” by the ECtHR was relatively slow. Starting first with contributory benefits (benefits funded by a scheme that an individual had paid into),82 and later deciding in Stec v UK that non-contributory (tax-funded) benefits could also be considered “possessions” under the scheme of the First Protocol.83 The finding that exclusionary welfare policies potentially infringe Article 1 of the First Protocol, rather than Article 8, is quite telling. The use of this Article limits the scope of review to mainly those who are already receiving some state support. Interfering in reduction or removal of benefits for people the state has already, of its own volition, committed to supporting is not as politically problematic as suggesting there is an obligation to provide support for the family home. By using Article 1 of the First Protocol, the ECtHR can also set out that it cannot guarantee the acquisition of benefits, as it cannot guarantee the acquisition of property.84 Nor can it guarantee the amount of property acquired.85 The ECtHR therefore ensures that only a relatively hands-off approach to scrutiny of welfare practices can be taken. While there is one way for benefits conditions or denial to be challenged under Article 1 of the First Protocol, by considering whether the practice of doing so would be discriminatory, this only serves to further move away from real review of welfare provision, and shift the legal argument to something less politically sensitive.

Using discrimination to review welfare policy

  • 86 STEC v United Kingdom (2006) 43 E.H.R.R. 47.
  • 87 Ibid. [53].

37Article 14 of the ECHR protects individuals from discrimination in the application of their convention rights: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article 14 can therefore only be enforced in combination with another right of the Convention, one that can be enforced as a standalone right. When combined with Article 1 of the First Protocol, this may actually grant a right to receive a particular welfare benefit that others in the same situation as the applicant receive, if the difference in treatment is found to be discriminatory. In Stec,86 the ECtHR found that “Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14”.87 The result of arguments along these lines has had differing degrees of success for claimants wanting to establish equal treatment to certain benefits, the details of which are outside the scope of this Article. What is important for this work is that the Court shifts the subject of its review of welfare policies in many cases from the human rights impact of reducing, removing, or denying benefits, to the much less contentious discrimination question. One may argue that the difference is immaterial, so long as the denial of welfare can be challenged in some way. Nevertheless, the reformulation of the type of scrutiny being applied is important. Firstly, discrimination can be defended if the state has an alternative reason for the difference in treatment. Secondly, discrimination does not really assess the level of engagement between human rights norms and welfare policy, being one of situational comparison. It does not, for instance, engage with decisions on when the lack of welfare impedes the home life or the standard of living to the point of a human rights infringement. Whilst there are cases which do this, the threshold is considerably higher and is therefore a route less travelled in litigation. The fact that the Court situates itself more often in an arena that is easier to justify or rectify for the contracting states, and where it could not really be seen as finding a human right to “welfare”, shows a concern for political backlash. This in turn makes it difficult to explore the true parameters of human rights in welfare access cases, so that this area of law might be both guided and limited by Euroscepticism and its potential to cause political problems for regional courts like the ECtHR, when they are dealing with matters of national sensitivity.

38Cognisance about potential political backlash might not only impact the Court’s approach to considering the human rights dimensions of welfare access, but also its approach to scrutinising the potential justification for discriminatory practices in welfare access or rules which infringe a substantive right (such as Article 8). This is not intended to be a criticism of the ECtHR, which has undoubtedly used the most readily available tools at its disposal to create a route to challenging unfair welfare practices. It would be much easier if some legal and political commitment were made to guaranteeing particular standards of living and financial provision amongst the contracting states of the ECHR. Instead, the point of this work is to highlight how the political landscape potentially reduces the tools available for the ECtHR, and dictates the realisation of the relationship between welfare access and human rights.

The margin of appreciation

39The ECtHR’s construction of the “margin of appreciation” in welfare access cases shows a willingness to create a legal “buffer zone” between itself and in-depth scrutiny of welfare policy. The margin of appreciation is a term coined to describe the deference awarded to contracting state authorities when constructing their national laws and policies that could impact their obligations under the ECHR. It is, essentially, a legal doctrine that recognizes the limits of the ECtHR’s power to legitimately interfere with national law and policy. With respect to welfare policy, the ECtHR grants a wide margin of appreciation:

  • 88 STEC and Others v UK (2005) (judgment) [52].

when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation”.88

  • 89 Note that this would only apply to Article 8 and Article 1 of the First Protocol (...)
  • 90 Laws J [73] quoting Lord Hoffman in R. (on the application of ProLife Alliance) v BBC (20 (...)
  • 91 Jed Meers, “Problems with the "manifestly without reasonable foundation" test”, Journal o (...)

40The Court will try to generally defer to the contracting state when assessing if a particular social or economic measure is justified, even when it seems discriminatory and thus contra to the rights in the Convention.89 Mostly this will include a review of whether the state’s discrimination against a particular group/individual is justifiable. This requires the state to show that they were pursuing a legitimate aim (i.e. there was a good reason for the discriminatory policy), and that the measure was proportionate to achieve that aim, meaning it was capable of achieving it and that there was no less discriminatory alternative. The wide margin of appreciation means that, unless completely unreasonable, the aim of the measure, capability to meet the aims, and lack of alternative put forward by the state will be accepted. After this, the ECtHR will conduct a “balancing” review and determine if the measure is proportionate to meet the required aim. The practical impact of this is twofold. Firstly, the regional Court has enshrined in its jurisprudence the preference for non-engagement between the convention and national social or economic policy, which is legitimated by the accuracy of the assumption that national authorities are more legitimately placed to dictate the best interests of the state. Secondly, and more problematically, the deference to the state allows national courts to also shy away from conducting rigorous review of welfare policy. In the UK case Carson, the Court of Appeal held that: “In the field of what may be called macro-economic policy […] the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest”.90 Despite the unsuitability for the test of a regional court being used by a national one,91 the latter having a greater legitimate capacity to scrutinise government policy, the high threshold set by the ECtHR for “unjustifiable” infringements of the ECHR by national welfare policy has been translated into UK case law and used to set a high benchmark for successful challenges of those policies at the national level. If neither the ECtHR nor national courts are willing to scrutinise welfare policy in all but the most extreme cases, the parameters of their human rights impact go unchecked. This is not to suggest that the ECtHR is responsible for the choices of national courts, nor that there is not a legitimate concern around potential for judicial overreach in this area, but merely to suggest that widespread non-engagement and deference to the contracting state can have a detrimental effect at the national level.

  • 92 Ibid, 17-18.
  • 93 Idem.

41Meers demonstrates that there must be some qualification when discussing the broadness of the margin of appreciation applied.92 The Strasbourg Court at least still conducts a review of the overall balance struck between the state’s legitimate interest and the rights of the individual, before making its assessment on whether the economic or social measure at hand is a justified infringement of Convention rights.93 Perhaps even more tellingly, the ECtHR notes that the scope of the margin of appreciation will depend upon the context of the case. For cases involving discrimination of vulnerable groups such as disabled persons, women, children, or even non-nationals, there would need to be “very weighty reasons” to justify discrimination in welfare access and the margin awarded to states would be narrower. Whilst this is a welcomed nuancing of the law, it also indicates that the ECtHR reserves its scrutiny for only the most politically palatable scenarios. As noted above, conducting review of welfare policy mainly through discrimination law, rather than placing positive obligations on the state, is one level of making the scrutiny more politically palatable. Another layer of political softening is narrowing the scope of rigorous review to the most vulnerable individuals, as this again limits the type of review and adds another layer of distance between the Court and review of welfare policy. It is not the intention of the author to suggest that protection should not be in place for highly vulnerable members of society. Instead, it is to suggest that the difference in treatment between them and the less vulnerable, and the route of interpretation taken by the Court on the matter of welfare policy, could indicate that norms are driven by the reception of the Court’s jurisprudence in the national political sphere.

Conclusions

42This article embarked upon the task of considering how Euroscepticism affects the human rights dimensions of welfare access, across the two regional legal frameworks of EU law and ECHR law. The influence of Euroscepticism in welfare access cases, whether or not relating to human rights explicitly, is impossible to determine with any certainty. However, this work has demonstrated a potential influence. Whilst accepting a legitimate concern for the politically sensitive nature of taxation and resource redistribution, this article has shown that there are some indications in both EU law and ECHR law that the parameters of human rights regarding welfare access are shaped according to political tension, and to the willingness of regional courts to evade their responsibility to conduct scrutiny of policies in this sensitive area. The result of this is that the human rights dimension to welfare is under-explored, and that there are scenarios where the material issues at the heart of particular rights is engaged without any legal recognition of this.

43The current political climate and Euroscepticism in Europe has the potential to shape and influence the parameters of human rights norms in welfare access cases. Both regional courts show a level of non-engagement with these politically sensitive matters, and a preference for granting states deference that stretches (arguably) beyond what is legally or even politically necessary. Policies based on a reduction to welfare benefits access, Euroscepticism, and unfortunately also discrimination thrive when there is a lack of scrutiny. Human rights norms undoubtedly have a role to play in welfare access cases, this is even accepted by national and the European courts. The general evasion of setting clear standards therefore boils down to the pursuit of political neutrality, and results in general support of exclusionary welfare policies that may have, at least in some way, been shaped by Euroscepticism. Underneath these facets there are genuine issues of legitimacy, competence, and the redistributive autonomy of the states. However, a common theme throughout this piece is that the regional Court’s unwillingness to set clear parameters for human rights infringements has translated to a similar pattern in the national courts – particularly in the UK. So, while genuine concern for legitimacy and competence should influence the way that human rights norms are applied and interpreted in cases concerning social benefits, this should not lead to several layers of disengagement between the rights frameworks and welfare policies.

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MINISTRY OF THE INTERIOR (AUSTRIA), Letter to Presidency of the European Council on Free Movement of Persons, 2013, available at: <http://docs.dpaq.de/3604-130415_letter_to_presidency_final_1_2.pdf>.

NÍ CHINNÉIDE Harriet & SEVRIN Eva, “Restoring Balance: A Critical Response to the Open Letter on Migration and Human Rights”, Strasbourg Observers, 17 June 2025, available at: <https://strasbourgobservers.com/2025/06/17/restoring-balance-a-critical-response-to-the-open-letter-on-migration-and-human-rights/>.

NIC SHUIBHNE Niahm, “Limits rising, duties ascending: the changing legal shape of Union citizenship”, Common Market Law Review, vol. 52, n° 4, 2015, 889-937.

NIC SHUIBHE Niahm, “What I tell you three times is true: lawful residence and equal treatment after Dano”, Maastricht Journal of European and Comparative Law, vol. 23, n° 6, 2016, 908-936.

O’BRIEN Charlotte, “Real links, abstract rights and false alarms: the relationship between the ECJ’s ‘real link’ case law and national solidarity”, European Law Review, vol. 33, n° 5, 2008, 643-665.

O’BRIEN Charlotte, “The ECJ sacrifices EU citizenship in vain: Commission v. United Kingdom”, Common Market Law Review, vol. 54, n° 1, 2008, 209-243.

O’BRIEN Charlotte, “Civis Capitalist Sum: Class as the new guiding principle of EU free movement rights”, Common Market Law Review, vol. 53, n° 4, 2016, 937-977.

O’BRIEN Charlotte, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK, London: Hart Publishing, 2017.

O’BRIEN Charlotte, “The great EU citizenship illusion exposed: equal treatment rights evaporate for the vulnerable (CG v The Department for Communities in Northern Ireland)”, European Law Review, vol. 46, n° 6, 2021, 801-817.

PAJU Jaan, “The Charter and Social Security Rights: Time to Stand and Deliver?”, European Journal of Social Security, vol. 24, n° 1, 2022, 21-39.

PENNINGS Frans, “Does the EU Charter of Fundamental Rights have Added Value for Social Security?”, European Journal of Social Security, vol. 24, n° 2, 2022, 117-135, available at: <https://journals.sagepub.com/doi/full/10.1177/13882627221095105>.

WELSH Alice, The Market Citizenship Illusion: Free Movement Rights for Atypical Workers, London: Hart Publishing, 2025.

WOLLENSCHLÄGER Ferdinand, “Consolidating EU Citizenship: Residency and Solidarity Rights for Jobseekers and the Economically Inactive in a Post-Dano Era”, in Daniel THYM (ed.), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, London: Hart Publishing 2017, 171-190.

Legislation

Charter of Fundamental Rights of the European Union (2012) OJ C 326/391 (EUCFR).

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).

Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004) OJ L158/77 (CRD).

Case Law (UK)

Anufrijeva v Southwark LBC (2004) 2 WLR. 603.

Mirga v Secretary of State for Work and Pensions (2016) UKSC 1 [46]; AMS v Secretary of State for Work and Pensions (2017) UKUT 381.

Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (2011) UKSC 11.

R (Gureckis) v Secretary of State for the Home Department and others (2017) EWHC 3298 (Admin).

R (on the application of ProLife Alliance) v BBC (2002) EWCA Civ 297.

Case Law (Court of Justice of the European Union)

Alimanovic C-67/14 (2015) ECLI:EU:C:2015:597.

Collins C-138/02 (2004) ECLI:EU:C:2004:172.

Dano C-333/13 (2014) ECLI:EU:C:2014:2358.

CG v The Department for Communities in Northern Ireland C-709/20 ECLI:EU:C:2021:602.

Commission v UK C-308/14 (2016) ECLI:EU:C:2016:436.García-Nieto C-299/14 (2016) ECLI:EU:C:2016:114.

Grzelczyk C-184/99 (2001) ECLI:EU:C:2001:458.

Ioannidis C-258-04 (2005) ECLI:EU:C:2005:559.

Olazabal C-100/01 (2002) ECLI:EU:C:2002:712.

Orfanopoulos C-482/01 (2004) ECLI:EU:C:2004:262.

Prete C-367/11 (2012) ECLI:EU:C:2012:668.

R v Bouchereau C-30/77 (1977) EU:C:1977:172.

Rutili C-36/75 (1975) ECLI:EU:C:1975:137.

Trojani C-456/02 (2004) ECR I-07573.

Case Law (European Court of Human Rights)

Amrollahi v.Denmark (2000) Application no. 56811/00.

Beldjoudi v France (1992) 14 E.H.R.R. 801.

Boultif v Switzerland (2001) 33 E.H.R.R. 50.

Budina v Russia (2009) Application no. 45603/05.

Gaygusuz v Austria (1997) 23 E.H.R.R. 364.

Larioshina v Russia (2002) Application no. 56869/00.

Marckx v Belgium (1979) 2 E.H.R.R. 330.

Moustaquim v Belgium (1991) 13 E.H.R.R. 802.

Müller v Austria (1975) 3 DR 25.

Okpisz v Germany (2006) 42 E.H.R.R. 32.

O'Rourke v UK (2001) Application No. 39022/97 (unreported).

Pančenko v Latvia (1999) Application no. 40772/98.

Petrovic v Austria (2001) 33 E.H.R.R. 307.

Price v the United Kingdom (2001) Application no. 33394/96.

STEC v United Kingdom (2006) 43 E.H.R.R. 47.

Üner v Netherlands (2006) application no. 46410/99.

V v UK (1999) Application no. 24888/94.

Valašinas v Lithuania (2001) Application no. 44558/98.

Weller v Hungary (2009) ECHR 530.

Yılmaz v Germany (2004) 38 E.H.R.R. 23.

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Notes

1 This article was first drafted in 2021 and has since been updated, but it is possible that not all relevant legal developments since have been taken into consideration since the original drafting.

2 And an approach to administering UK immigration and welfare law that has sought to exclude EU citizens from vital welfare access. See, for example, the empirical work in Charlotte O’Brien (2017) and Alice Welsh (2025).

3 See Speech by David Cameron (2013) and Letter from David Cameron to Donald Tusk (2015).

4 Dimitrios Giannoulopoulos, “The Eurosceptic Right and (Our) Human Rights: the Threat to the Human Rights Act and the European Convention on Human Rights is Alive and Well”, European Human Rights Law Review, n° 3, 2020, 225-242; Pablo Castillo-Ortiz, “‘A Foreign Court’: ECHR-scepticism in Comparative Perspective”, U.K. Const. L. Blog, 25 June 2024.

5 Zoë Jay, “A Tale of two Europes: How conflating the European Court of Human Rights with the European Union exacerbates Euroscepticism”, The British Journal of Politics and International Relations, vol. 24, n°4, 2021, 563-581.

6 See Andrew Geddes & Leila Hadj-Abdou, “An unstable equilibrium: freedom of movement and the welfare state in the European Union”, in Gary P. Freeman and Nikola Mirilovic (eds.), Handbook on Migration and Social Policy, Edward Elgar, 2016, 222; see also the open letter written by the four Countries to the Irish Presidency of the EU Council, detailing their concerns about welfare tourism: <http://docs.dpaq.de/3604-130415_letter_to_presidency_final_1_2.pdf>.

7 Contracting states are those which have ratified the ECHR and are legally bound to respect its provisions and allow review of the undertaking of their obligations by the European Court of Human Rights.

8 The open letter is available here: <https://www.governo.it/sites/governo.it/files/Lettera_aperta_22052025.pdf>.

9 Peter Hilpold, “Challenging Strasbourg: The May 2025 Letter and the Pushback Against the European Court of Human Rights”, VerfBlog, May 30, 2025.

10 Pablo Castillo-Ortiz, “Right-Wing Eurosceptic Parties and the Strategic Use of Law”, Journal of Common Market Studies, vol. 61, n° 5, 2023, 1125-1142.

11 Harriet Ní Chinnéide & Eva Sevrin, “Restoring Balance: A Critical Response to the Open Letter on Migration and Human Rights”, Strasbourg Observers, 17 June 2025.

12 Idem; see also Dimitrios Giannoulopoulos, op.cit.

13 The term “regional frameworks” here refers to legal instruments that exist beyond the national level but have a defined scope of application across a region; the ECHR applies to 46 European countries (out of 51), while EU law (mostly) only applies to its 27 member states.

14 Michael Dougan, “National Welfare Systems, Residency Requirements and EU Law: Some Brief Comments”, European Journal of Social Security, vol. 18, n° 2, 2016, 102.

15 Neville Harris, “Demagnetisation of Social Security and Health Care for Migrants to the UK”, European Journal of Social Security, vol. 18, n°2, 2016, 130.

16 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union citizenship”, Common Market Law Review, vol. 52, n° 4, 2015, 889-937; Niahm Nic Shuibhne, “What I tell you three times is true: lawful residence and equal treatment after Dano”, Maastricht Journal of European and Comparative Law, vol. 23, n° 6, 2016, 908-936; Anastasia Iliopoulou-Penot, “Deconstructing the former edifice of Union citizenship? The Alimanovic judgment”, Common Market Law Review, vol. 53, n° 4, 2016, 1007-1035; Charlotte O’Brien, “Civis Capitalist Sum: Class as the new guiding principle of EU free movement rights”, Common Market Law Review, vol. 53, n° 4, 2016, 937-977; Michael Blauberger et al., “ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence”, Journal of European Public Policy, vol. 25, n° 1, 2018, 1422-1441.

17 For more details on this point, see Victoria Hooton, Free Movement and Welfare Access in the European Union: Re-Balancing Conflicting Interests in Citizenship Jurisprudence, London: Hart Publishing, 2024.

18 Case C-184/99 Grzelczyck (2001) ECLI:EU:C:2001:458 [31].

19 For this category of individuals, the conditions for residency (and thus welfare access) are the highest. See Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States: OJ L 158/77 (“CRD”), Article 7.

20 For instance, particular residence conditions are in place for students, jobseekers, and all other economically inactive persons (those who would not be classed as a worker or self-employed person, such as unemployed persons, carers, pensioners, etc.) in Articles 7 and 14, CRD.

21 See Grzelczyk (n4); Case C-138/02 Collins (2004) ECLI:EU:C:2004:172; Case C-258-04 Ioannidis (2005) ECLI:EU:C:2005:559; Case C-367/11 Prete (2012) ECLI:EU:C:2012:668.

22 CRD, Article 7(1)(b).

23 Grzelckzyk [44].

24 Charlotte O’Brien, “Real links, abstract rights and false alarms: the relationship between the ECJ’s ‘real link’ case law and national solidarity”, European Law Review, vol. 33, n° 5, 2008, 643-665.

25 Michael Blauberger et al., “ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence”, op.cit., 1423.

26 Case C-333/13 Dano (2014) ECLI:EU:C:2014:2358.

27 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union citizenship”, op.cit.

28 Case C-67/14 Alimanovic (2015) ECLI:EU:C:2015:597; Case C-299/16 García-Nieto (2016) ECLI:EU:C:2016:114; see Niahm Nic Shuibhne, “What I tell you three times is true: lawful residence and equal treatment after Dano”, op.cit. For more details on the nuances of cases concerning jobseeker residence and welfare access, see Ferdinand Wollenschläger, “Consolidating EU Citizenship: Residency and Solidarity Rights for Jobseekers and the Economically Inactive in a Post-Dano Era”, in Daniel Thym (ed.), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU, London: Hart Publishing, 2017, 171.

29 Case C-308/14 Commission v UK (2016) ECLI:EU:C:2016:436.

30 Charlotte O’Brien, “The great EU citizenship illusion exposed: equal treatment rights evaporate for the vulnerable (CG v The Department for Communities in Northern Ireland)”, European Law Review, vol. 46, n° 6, 2021, 801-817.

31 Michael Blauberger et al., “ECJ Judges read the morning papers. Explaining the turnaround of European citizenship jurisprudence”, op.cit.

32 Idem.

33 Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union citizenship”, op.cit., 911.

34 Michael Dougan, “National Welfare Systems, Residency Requirements and EU Law: Some Brief Comments”, op.cit.

35 For a detailed presentation of how the two systems compare on issues of equal treatment vis-à-vis welfare benefits access for migrants, see Victoria Hooton, “Is article 14 the new article 18? Social welfare access, fundamental rights, and non-discrimination in Europe”, Journal of Social Security Law, vol. 29, n° 3, 2022, 172-199.

36 For citizens who are not workers or self-employed, family members of a worker/self-employed person, nor jobseekers or students.

37 Case C-456/02 Trojani (2004) ECR I-07573.

38 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004) OJ L158/77 (CRD).

39 CRD, Recital 16.

40 Mirga v Secretary of State for Work and Pensions (2016) UKSC 1 [46]; AMS v Secretary of State for Work and Pensions (2017) UKUT 381 [46].

41 It should be noted that the citizen may not be guaranteed to have access to necessary welfare benefits in their home Member State. There may be very little welfare safety net, or there may be rules on access to welfare for citizens returning after some time living abroad.

42 Anita Handlmaier & Michael Blauberger, “Enter at your own risk: free movement of EU citizens in practice”, West European Politics, vol. 40, n° 6, 2017, 1198-1217.

43 Ibid., 1214.

44 Niahm Nic Shuibhne, “Limits rising, duties ascending: the changing legal shape of Union citizenship”, op.cit., 934.

45 Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (2011) UKSC 11, at [107].

46 See CRD, Article 28; and i.e. Case C-30/77 R v Bouchereau (1977) EU:C:1977:172; Case C-36/75 Rutili (1975) ECLI:EU:C:1975:137; Case C-100/01 Olazabal (2002) ECLI:EU:C:2002:712; Case C-482/01 Orfanopoulos (2004) ECLI:EU:C:2004:262.

47 CRD, Article 28.

48 R (Gureckis) v Secretary of State for the Home Department and others (2017) EWHC 3298 (Admin).

49 Ibid., para 89.

50 Ibid., para 93.

51 For example, Moustaquim v Belgium (1991) 13 E.H.R.R. 802; Beldjoudi v France (1992) 14 E.H.R.R. 801; Boultif v Switzerland (2001) 33 E.H.R.R. 50; Amrollahi v.Denmark (2000) Application no. 56811/00; Yılmaz v Germany (2004) 38 E.H.R.R. 23.

52 See Üner v Netherlands (2006) application no. 46410/99.

53 Mirga, above (n38) [46].

54 Mirga [46].

55 Charter of Fundamental Rights of the European Union (2012) OJ C 326/391 (“EUCFR”).

56 Jaan Paju, “The Charter and Social Security Rights: Time to Stand and Deliver?”, European Journal of Social Security, vol. 24, n° 1, 2022, 21-39.

57 EUCFR, Article 51(2).

58 Ibid.

59 Frans Pennings, “Does the EU Charter of Fundamental Rights have Added Value for Social Security?”, European Journal of Social Security, vol. 24, n° 2, 2022, 117-135.

60 Jaan Paju, “The Charter and Social Security Rights: Time to Stand and Deliver?”, op.cit., 30.

61 Dano (n24) [85].

62 Ibid. [90]-[92].

63 Frans Pennings, “Does the EU Charter of Fundamental Rights have Added Value for Social Security?”, op.cit.

64 Charlotte O’Brien, “The great EU citizenship illusion exposed: equal treatment rights evaporate for the vulnerable (CG v The Department for Communities in Northern Ireland)”, European Law Review, vol. 46, n° 6, 2021, 812.

65 Absolute rights are those which cannot be qualified (i.e. curtailed) by the state for any reason. One such right, as discussed here, is the right to freedom from torture and inhuman or degrading treatment in Article 3.

66 The suggestion that Article 3 had been infringed in O’Rourke, by an eviction leading to rough sleeping of a man with poor health, was rejected on the grounds that this did not meet the minimum standards of severity for “inhuman or degrading treatment”.

67 V v UK (1999) Application no. 24888/94.

68 Price v the United Kingdom Application no. 33394/96; Valašinas v Lithuania (2001) Application no. 44558/98

69 Budina v Russia (2009) Application no. 45603/05.

70 Anufrijeva v Southwark LBC (2004) 2 WLR. 603.

71 Ibid. [35].

72 Pančenko v Latvia (1999) Application no. 40772/98.

73 Larioshina v Russia (2002) Application no. 56869/00.

74 O'Rourke v UK (2001) Application No. 39022/97 (unreported).

75 Philip Alston, Statement on Visit to the United Kingdom, United Nations Special Rapporteur on extreme poverty and human rights, November 2018, 16.

76 Idem.

77 Okpisz v Germany (2006) 42 E.H.R.R. 32.

78 Weller v Hungary (2009) ECHR 530; Petrovic v Austria (2001) 33 E.H.R.R. 307.

79 O'Rourke v UK (2001 Application No. 39022/97 (unreported).

80 Petrovic v Austria (2001) 33 E.H.R.R. 14.

81 Article 8 was not even considered, once it was established that Article 1 of the First Protocol applied in Gaygusuz v Austria [54].

82 Gaygusuz v Austria (1997) 23 E.H.R.R. 364 [46].

83 STEC and Others v UK (2005) (admissibility decision) Application Nos. 65731/01 and 65900/01 [53].

84 Marckx v Belgium (1979) 2 E.H.R.R. 330.

85 Müller v Austria (1975) 3 DR 25.

86 STEC v United Kingdom (2006) 43 E.H.R.R. 47.

87 Ibid. [53].

88 STEC and Others v UK (2005) (judgment) [52].

89 Note that this would only apply to Article 8 and Article 1 of the First Protocol cases.

90 Laws J [73] quoting Lord Hoffman in R. (on the application of ProLife Alliance) v BBC (2002) EWCA Civ 297 [75].

91 Jed Meers, “Problems with the "manifestly without reasonable foundation" test”, Journal of Social Security Law, vol. 27, n°1, 2020, 12.

92 Ibid, 17-18.

93 Idem.

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Victoria Hooton, « Euroscepticism, Social Benefits, and Fundamental Rights dialogue in Europe »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 23 janvier 2026. URL : http://journals.openedition.org/lisa/17888 ; DOI : https://doi.org/10.4000/15gt6

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Victoria Hooton

Dr Victoria Hooton is a Lecturer in Law at the University of Sheffield (UK) and an associate researcher at the Max Planck Institute for Legal History and Legal Theory in Frankfurt (Germany). Her research interests are EU law, welfare law, and equality law.

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